Business Aviation, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1025 (N.L.R.B. 1973)

BUSINESS AVIATION, INC. 1025
Business Aviation , Inc. and Laborers ' Local 352,
Laborers ' International Union of North America,
AFL-CIO, Petitioner. Case 18-RC-9286
April 10, 1973
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed on October 30, 1972, an
election by secret ballot was conducted under the
supervision of the Regional Director for Region 18
among the employees in the appropriate unit on
November 28, 1972. At the conclusion of the
election, the parties were furnished a tally of ballots
which showed that of approximately two eligible
voters, two cast ballots, of which two were for and
none against the Petitioner. Thereafter the Employer
filed timely objections to the election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation of
the issues raised by the objections and a further
ground brought to his attention during the course
thereof for which an objection might exist, and, on
January 4, 1973, issued and served on the parties his
report on objections attached hereto in pertinent
part. In his report, the Regional Director recom-
mended that the objections be overruled and that an
appropriate certification be issued. Thereafter, the
Employer filed timely exceptions, and a brief in
support thereof, to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes. of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the purposes
of ' collective bargaining within the meaning of
Section 9(b) of the Act: All drivers and fuelers
employed at the Employer's facility at Sioux Falls,
South Dakota , excluding all professional and office
clerical employees , guards and supervisors, as de-
fined in the Act.
5. The Board has considered the Regional Direc-
tor's report , the Employer 's exceptions thereto, and
its brief in support thereof , and the entire record in
this case , and hereby adopts the Regional Director's
findings , conclusions , and recommendations.'
We cannot agree with our dissenting colleague that
a casual solicitation of three employees , only one of
whom was eligible to vote , the night before the
election by a union agent can be characterized as a
"speech" to a "massed assembly of employees"
under the Board 's Peerless Plywood rule. That rule
was not intended to nor , in our opinion , does it
prohibit every minor conversation between a few
employees and a union agent or supervisor for a 24-
hour period before an election.
Accordingly, as the tally shows that as the
Petitioner has obtained a majority of the valid ballots
cast , we shall certify it as the exclusive bargaining
representative of the employees in the appropriate
unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Laborers' Local 352,
Laborers' International Union of North America,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the unit. found appropriate
herein for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment,
or other conditions of employment.
CHAIRMAN MILLER, dissenting:
Contrary to my colleagues, I would sustain the
Employer's objection that the Petitioner violated the
rule against speeches to employees on company time
within 24 hours of the election, based on Peerless
Plywood. 2
The record indicates that the Petitioner's business
agent entered the Employer's premises within 24
hours of the election for the announced purpose of
soliciting cards from two employees. Of the three
employees, one was eligible to vote and comprised 50
percent of the then eligible employees, since of the
original five-man unit, only two remained on the
payroll. The. other two had been hired after the
eligibility "cut-of(" date. While engaged in this
solicitation, which occurred on the employees'
working time, he addressed the three employees then
on duty about the benefits they would receive if they
' The Employer' s exceptions , in our opinion , raise no material or
substantial issues of fact or law which would warrant reversal of the
Regional Director's recommendation.
2 Peerless Plywood Company, 107 NLRB 427.
202 NLRB No. 151
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted for the Union the next day, and reminded the
eligible employee to vote. The "conversation" lasted
at least 10 or 15 minutes. No supervisory or
management personnel were present.
In Peerless Plywood, supra, the Board set out a
simple rule that employers and unions alike will be
prohibited from making election speeches on compa-
ny time to massed assemblies of employees within 24
hours before the scheduled time for conducting an
election. The Board emphasized that it was attempt-
ing to achieve equality in electioneering by eliminat-
ing last minute speeches on company time that
because of their unsettling effect on the employees
tend to interfere with the sober and thoughtful choice
which a free election is designed to reflect.
Here a substantial portion of the work force,
though the raw numbers are small, were addressed
by one of the parties on company time within 24
hours of the election. That was a clear violation of
the principles announced in Peerless Plywood, and,
without passing on the Employer's other objection, I
would therefore set the election aside and direct a
second election.
APPENDIX
The Objections
The objections allege and raise
issues:
David Lee Van Ningen
Larry Wayne Quick
John Alexander Shaver
Michael F . Harbin
Kenneth Charles Wallin
Of this group David Lee Van Ningen was terminat-
ed for cause on October 30, 1972; Larry Wayne
Quick voluntarily terminated his employment effec-
tive November 11, 1972; John Alexander Shaver.
voluntarily terminated his employment effective
November 15, 1972; and Michael F. Harbin. volun-
tarily terminated his employment effective Novem-
ber 28, 1972, the day of the election. The substance
of the Employer's first objection is that because of
the above terminations, none of which have been
alleged as discriminatory by either party, only one of
the original five employees on the Excelsior list had
not terminated or given notice of termination and
thus the vote could not have been representative. It is
my conclusion, however, that the votes of both
Harbin and Wallin were valid, that the result of the
vote was representative and that Certification of
Representative should issue.
` As to the validity of Harbin's ballot, the Board has
consistently held that there are two requirements for
eligibility to vote in a Board administered election:
employment on the eligibility date and upon the date
following , of the election.4 Harbin satisfied both of those tests,the
1. Since the number of eligible employees was
reduced by voluntary termination and termination
for cause from five at the time of the Direction of
Election to two at the time of the election and since
including replacements the employee complement
remained at five, whether the tally of the balloting of
the only two eligible voters was representative of the
entire unit.
2. Whether by entering the Employer's premises
and speaking to several employees, the Union
business representative violated the rule against
speeches to employees within 24 hours of the
election.
The Investigation and Findings
'Objection No. 1
The Stipulation for Certification Upon Consent
Election was signed by the parties on October 27,
1972, and approved by the Regional Director on
October 30, 1972. The specific payroll period for
eligibility agreed upon was October 24, 1972. At that
date, five employees were unit members and were
thus listed on the Excelsior list:
and the fact that he terminated his employment
effective the day of the election does not invalidate
its reliability in determining representation.5
In determining whether the results of an election
are representative of the' entire unit, the Board has
chosen to avoid mechanical application of percent-
age rules and has examined and evaluated each case
on its own merits. In approaching the issue of the
representative nature of a given vote, the presump-
tion of validity has been recognized and thus in most
cases the election is overturned only when it was
conducted in the presence of various commonly
recognized extenuating circumstances. None of these
are present in the case at hand, however. Here there
was no expansion or contraction of the unit, nor is
the business a seasonal one with recognizable peaks
of employment. There was no destruction of the unit
by transferral of relocation of the business. No
improprieties in the ballot or the actual mechanics of
the Board's administration of the election were
alleged or are evident. No eligible voters were.
prevented from casting ballots. The election was held
at the place and time agreed upon and employees
Harbin and Wallin both satisfied, as noted above,
the eligibility requirements agreed upon by the
4 Choc-ola Bottlers, Inc., 192 NLRB No. 182; Plymouth Towing Company, 5 Orleans Storage Company, Inc., 123 NLRB 1757.
Inc., 178 NLRB 651.
BUSINESS AVIATION, INC. 1027
parties. Moreover, the question does not involve a
simple issue of representative voting in a two-men
unit, but rather whether a vote of the only two
eligible voters in a five-man unit may be taken as
representative. The obscuring factor, and one which,
although fully aware of it, neither party saw fit to
raise before the election is the pre-election turnover
of three of the original five eligible voters.
Based on the lack of any other accompanying
unforseen or otherwise extenuating elements, I find
that the pre-election turnover in the voting unit is not
sufficient in the case at hand to invalidate the results
of the election and render them unrepresentative.
Given the size of the unit involved, the fact that no
change in the nature of the unit took place, and that
both eligible voters cast ballots, I find the results to
be representative of the unit and thus recommend
that the Board find the Employer's first objection
.without merit and overrule it.
Objection No. 2
The substance of the Employer's second objection
is that Ray Grimes, the Union Business Agent, made
an election speech to a massed assembly of employ-
ees on Company property and time within the 24-
hour period immediately preceding the election, and
by doing so violated the Board rule against such
conduct announced in Peerless Plywood Co., 107
NLRB 427. I do not find the alleged conduct of the
Business Agent in violation of that rule.
The election in question was held from 11:30 a.m.
to 12:00 noon on November 28, 1972. By way of
support for this objection, the Employer furnished
affidavits which allege that at approximately 8:30, or
9:00 p.m. on November 27, 1972, Grimes entered the
Employer's premises with the announced purpose of
soliciting union cards from two employees who had
not yet signed cards. Both of the non-signers from
whom Grimes solicited signatures were hired after
the date of the Regional Director's approval of the
Stipulation for Certification Upon Consent Election
and thus were not eligible voters, and in fact one
employee terminated his employment on November
27, and so was not employed on the day of the
election . It is undisputed that there were no supervi-
sory or management personnel present . According to
the Employer , Grimes then began a conversation
with Kenneth Wallin , one of the two eligible voters;
Randy Schleuter , the above-mentioned ineligible
voter whose employment ran from November 16 to
November 27, 1972; and Ronald Reyelts, another
voter ineligible by the reason of his late employment.
During the course of that conversation, which by the
Employer's admission lasted no more than 10 or 15
minutes, the Business Agent apparently solicited
union card signatures from Schleuter and Reyelts,
addressed all three about the benefits which would
come to them if they voted for the Union the next
day, and reminded Wallin to vote. Grimes then
exited.
The case upon which the Employer seems to rely
for support of this objection is, as noted above,
Peerless Plywood Co., supra. The rule there was stated
to be that , "employers and unions alike will be
prohibited from making election speeches on compa-
ny time to massed assemblies of employees within 24
hours before the scheduled time for conducting an
election ." It is my view, however , the factual
framework of the instant case does not fall within the
prohibitions of that rule. The Employer notes that
only one eligible voter was present during the
meeting in question and that the Union Business
Agent entered the premises with the express purpose
of obtaining authorizations from the two non-eligible
voters. The Union Business Agent was obviously not
allied with the Employer to the extent that his mere
presence or his requests to talk to individual
employees would have created a "captive audience."
His conversation with the employees was not part of
a monologue type presentation.
I find that the conversation here was not the kind
of election speech to a captive massed audience
envisioned by the Board as "tending to create a mass
psychology which overrides arguments made through
other campaign media."6 Accordingly , I recommend
that the Board find the Employer's second objection
without merit.
6 Peerless Plywood Co., supra, at 429; Eagle-Picher Industries , Inc., 171
NLRB 293; and Buddies Supermarkets, Inc., 192 NLRB No. 143.